Professional Documents
Culture Documents
2011-2012
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2 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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3 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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4 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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5 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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6 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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7 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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8 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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9 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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10 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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http://www.wcl.american.edu/nimj/international_hum_law.cfm
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12 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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Sir Roque says: US: Discovery Inchoate title Huber: Discovery is not enough, international law prescribed that not only discovery but also effective occupation Netherlands: Treaty Agreement of the Dutch with the natives allowed the Dutch to exercise sovereignty over the islands through: 1. 2. 3. taxation provision of defense Spain never protested the exercise of territorial rights by Netherlands
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17 Public International Law Finals reviewer Prof. H.H.L. Roque 1 Semester A.Y. 2011-2012
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Doesnt apply to design, construction, manning o equipment of foreign ships unless in implementation of generally accepted intl rules and standards Due publicity is required For purposes of innocent passage, may a coastal state establish sea lanes and traffic separation schemes? YES. UNCLOS, 22. Sea lanes and traffic separation schemes in the territorial sea 1. The coastal State may, where necessary having regard to the safety of navigation, require foreign ships exercising the right of innocent passage through its territorial sea to use such sea lanes and traffic separation schemes as it may designate or prescribe for the regulation of the passage of ships. 2. In particular, tankers, nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances or materials may be required to confine their passage to such sea lanes.
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the recommendations of the competent international organization; any channels customarily used for international navigation; the special characteristics of particular ships and channels; and the density of traffic.
The coastal State shall clearly indicate such sea lanes and traffic separation schemes on charts to which due publicity shall be given.
Duties of coastal state relating to innocent passage through the TS (UNCLOS, 24) Shall not hamper the innocent passage except in accordance with UNCLOS In particular, it shall not: (1) Impose requirement on foreign ships, which have the effect of denying or impairing the right of innocent passage; or (2) Discriminate against the ships of any state, or against ships carrying cargoes to and from or on behalf of the state To give appropriate publicity to any danger to navigation in its TS, within its knowledge Coastal state may NOT levy charges for passage through TS by reason only of such passage. Charges may be levied if in payment of specific services rendered to the ship General rule: coastal state may not exercise criminal jurisdiction on board a foreign ship passing through TS to arrest a person or to conduct an investigation in connection with any crime committed on board the ship during its passage Coastal state may not also take any steps on board a foreign ship passing through the TS, if the ship proceeding from the foreign port is only passing through that sea without entering internal waters. Exceptions: UNCLOS, 27(1), (2) Coastal state may not exercise civil jurisdiction over foreign ships passing through the territorial sea with respect to a person on board. UNCLOS, 28. Submarines allowed innocent passage through TS, if navigating through the surface and showing their flag (UNCLOS, 20) Nuclear-powered ships or those carrying nuclear or other inherently dangerous or noxious substances? YES; required: documents and observe precautionary measures established by intl agreements Warships also allowed innocent passage though TS UNCLOS, 29-32 UNCLOS, 27. Criminal jurisdiction on board a foreign ship 1. The criminal jurisdiction of the coastal State should not be exercised on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed on board the ship during its passage, save only in the following cases: (a) if the consequences of the crime extend to the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic substances. 2. 3. 4. 5. The above provisions do not affect the right of the coastal State to take any steps authorized by its laws for the purpose of an arrest or investigation on board a foreign ship passing through the territorial sea after leaving internal waters. In the cases provided for in paragraphs 1 and 2, the coastal State shall, if the master so requests, notify a diplomatic agent or consular officer of the flag State before taking any steps, and shall facilitate contact between such agent or officer and the ship's crew. In cases of emergency this notification may be communicated while the measures are being taken. In considering whether or in what manner an arrest should be made, the local authorities shall have due regard to the interests of navigation. Except as provided in Part XII or with respect to violations of laws and regulations adopted in accordance with Part V, the coastal State may not take any steps on board a foreign ship passing through the territorial sea to arrest any person or to conduct any investigation in connection with any crime committed before the ship entered the territorial sea, if the ship, proceeding from a foreign port, is only passing through the territorial sea without entering internal waters.
UNCLOS, 28. Civil jurisdiction in relation to foreign ships 1. The coastal State should not stop or divert a foreign ship passing through the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship. 2. The coastal State may not levy execution against or arrest the ship for the purpose of any civil proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its voyage through the waters of the coastal State. 3. Paragraph 2 is without prejudice to the right of the coastal State, in accordance with its laws, to levy execution against or to arrest, for the purpose of any civil proceedings, a foreign ship lying in the territorial sea, or passing through the territorial sea after leaving internal waters. UNCLOS, 29. Definition of warships. For the purposes of this Convention, "warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.
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Stable Coastline Policy not convincing enough. The policy in favor of a certain and stable coastline, strong as it is, would necessarily outweigh countervailing policy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." Straits - Straits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ) are under the purview of UNCLOS, but the legal regime in such straits in which passage is regulated in whole or in part by long-standing international conventions in force specifically relating to such straits is not affected. Through these waters, ships and aircraft of all countries are allowed transit passage, as long as they proceeded without delay and without threatening the bordering states. Magallona annotation: What is transit passage Right to exercise freedom of navigation and overflight solely for the purpose of continuous and expeditious transit through the straits used for intl navigation, i.e. between 2 areas of the high seas or between 2 EEZs. All ships and aircraft enjoy intl navigation Duties of states bordering straits used for international navigation shall not impede or hamper transit passage shall give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge NO suspension of transit passage [UNCLOS, 44] Principal duties of ships and aircraft in the exercise of the right of transit passage: They shall: (1) Proceed without delay through or over the strait (2) Refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of states bordering the strait, or in any other manner in violation of the principles of IL embodied in the UN Charter; and (3) Refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress. Foreign ships NOT allowed to conduct any research or survey without prior authorization of the states bordering the straits also applies to marine scientific research and hydographic survey ships Designation of sea lanes and prescription of traffic separation schemes ALLOWED, where necessary to promote safe passage of ships But, sea lanes and traffic separation schemes must conform to gener ally accepted intl regulations States may also substitute other sea lanes and traffic separation schemes for those previously designated or prescribed Ships in transit passage must respect appleicable sea lanes and traffic sep. schemes thus established Matters relating to transit passage that may be regulated by states: UNCLOS 42.1-. Laws and regulations of States bordering straits relating to transit passage 1. Subject to the provisions of this section, States bordering straits may adopt laws and regulations relating to transit passage through straits, in respect of all or any of the following: (a) the safety of navigation and the regulation of maritime traffic, as provided in article 41; (b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regarding the discharge of oil, oily wastes and other noxious substances in the strait; (c) with respect to fishing vessels, the prevention of fishing, including the stowage of fishing gear; (d) the loading or unloading of any commodity, currency or person in contravention of the customs, fiscal, immigration or sanitary laws and regulations of States bordering straits. 2. Such laws and regulations shall not discriminate in form or in fact among foreign ships or in their application have the practical effect of denying, hampering or impairing the right of transit passage as defined in this section. 3. States bordering straits shall give due publicity to all such laws and regulations. Foreign ships are under duty to comply with such laws and regulations UNCLOS, 42.4-5 4. Foreign ships exercising the right of transit passage shall comply with such laws and regulations. 5. The flag State of a ship or the State of registry of an aircraft entitled to sovereign immunity which acts in a manner contrary to such laws and regulations or other provisions of this Part shall bear international responsibility for any loss or damage which results to States bordering straits. Transit passage vs. innocent passage Transit passage Innocent passage Includes right to overflight Pertains only to navigation of ships No requirement specially applicable to submarines; assumed Requires submarines and other underwater vehicles to navigate that all ships have the freedom of navigationfor the purpose on the surface and to show their flag
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Corfu Channel Case. A squadron of British warships, the cruisers Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Several ships struck a mine and were damaged. UK sues People's Republic of Albania
Albanias failed its Duty it is liable. Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general, the existence of a minefield in Albanian territorial waters and in warning the British warships of the imminent danger to which the minefield exposed them. BASIS of such an obligation: (1.) elementary considerations of humanity, even more exacting in peace than in war; (2) the principle of freedom of maritime communication; (3) every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States. Albania was aware of the minelaying since the geography of the strait easily allowed Albanian lighthouse watchers to view such activities. Innocent passage through straits is a right recognized by international law. The decisive criterion is its geographical situation as connecting two parts of the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. Combat formation determines if a passage is innocent. d. Archipelagos UNCLOS, 49. Legal status of archipelagic waters, of the air spaceover archipelagic waters and of their bed and subsoil 1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast. 2. This sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the resources contained therein. 3. This sovereignty is exercised subject to this Part. 4. The regime of archipelagic sea lanes passage established in this Part shall not in other respects affect the status of the archipelagic waters, including the sea lanes, or the exercise by the archipelagic State of its sovereignty over such waters and their air space, bed and subsoil, and the resources contained therein. UNCLOS, 52. Right of innocent passage 1. Subject to article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through archipelagic waters, in accordance with Part II, section 3. 2. The archipelagic State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its archipelagic waters the innocent passage of foreign ships if such suspension is essential for the protection of its security. Such suspension shall take effect only after having been duly published. UNCLOS, 53. Right of archipelagic sea lanes passage 1. An archipelagic State may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea. 2. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such sea lanes and air routes. 3. Archipelagic sea lanes passage means the exercise in accordance with this Convention of the rights of navigation and overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone. 4. Such sea lanes and air routes shall traverse the archipelagic waters and the adjacent territorial sea and shall include all normal passage routes used as routes for international navigation or overflight through or over archipelagic waters and, within such routes, so far as ships are concerned, all normal navigational channels, provided that duplication of routes of similar convenience between the same entry and exit points shall not be necessary. 5. Such sea lanes and air routes shall be defined by a series of continuous axis lines from the entry points of passage routes to the exit points. Ships and aircraft in archipelagic sea lanes passage shall not deviate more than 25 nautical miles to either side of such axis lines during passage, provided that such ships and aircraft shall not navigate closer to the coasts than 10 per cent of the distance between the nearest points on islands bordering the sea lane. 6. An archipelagic State which designates sea lanes under this article may also prescribe traffic separation schemes for the safe passage of ships through narrow channels in such sea lanes. 7. An archipelagic State may, when circumstances require, after giving due publicity thereto, substitute other sea lanes or traffic separation schemes for any sea lanes or traffic separation schemes previously designated or prescribed by it. 8. Such sea lanes and traffic separation schemes shall conform to generally accepted international regulations. 9. In designating or substituting sea lanes or prescribing or substituting traffic separation schemes, an archipelagic State shall refer proposals to the competent international organization with a view to their adoption. The organization may adopt only such sea lanes and traffic separation schemes as may be agreed with the archipelagic State, after which the archipelagic State may designate, prescribe or substitute them.
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The High Seas UNCLOS, 86. Application of the provisions of this PartThe provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in accordance with article 58. UNCLOS, 87. Freedom of the high seas 1. The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2; (f) freedom of scientific research, subject to Parts VI and XIII. 2. These freedoms shall be exercised by all States with due regard for the interests of other States in their exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect to activities in the Area. UNCLOS, 88. Reservation of the high seas for peaceful purposes. The high seas shall be reserved for peaceful purposes. UNCLOS, 89. Invalidity of claims of sovereignty over the high seas. No State may validly purport to subject any part of the high seas to its sovereignty. UNCLOS, 90. Right of navigation. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. UNCLOS, 91. Nationality of ships 1. Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. Ships have the nationality of the State whose flag they are entitled to fly. There must exist a genuine link between the State and the ship. 2. Every State shall issue to ships to which it has granted the right to fly its flag documents to that effect. UNCLOS, 92. Status of ships
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Ships shall sail under the flag of one State only and, save in exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to its exclusive jurisdiction on the high seas. A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry.
A ship which sails under the flags of two or more States, using them according to convenience, may not claim any of the nationalities in question with respect to any other State, and may be assimilated to a ship without nationality. UNCLOS, 93. Ships flying the flag of the United Nations, its specialized agencies and the International Atomic Energy Agency. The preceding articles do not prejudice the question of ships employed on the official service of the United Nations, its specialized agencies or the International Atomic Energy Agency, flying the flag of the organization. UNCLOS, 94. Duties of the flag State
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Every State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag. In particular every State shall: (a) maintain a register of ships containing the names and particulars of ships flying its flag, except those which are excluded from generally accepted international regulations on account of their small size; and (b) assume jurisdiction under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. Every State shall take such measures for ships flying its flag as are necessary to ensure safety at sea with regard, inter alia, to: (a) the construction, equipment and seaworthiness of ships; (b) the manning of ships, labour conditions and the training of crews, taking into account the applicable international instruments; (c) the use of signals, the maintenance of communications and the prevention of collisions. Such measures shall include those necessary to ensure: (a) that each ship, before registration and thereafter at appropriate intervals, is surveyed by a qualified surveyor of ships, and has on board such charts, nautical publications and navigational equipment and instruments as are appropriate for the safe navigation of the ship; (b) that each ship is in the charge of a master and officers who possess appropriate qualifications, in particular in seamanship, navigation, communications and marine engineering, and that the crew is appropriate in qualification and numbers for the type, size, machinery and equipment of the ship; (c) that the master, officers and, to the extent appropriate, the crew are fully conversant with and required to observe the applicable international regulations concerning the safety of life at sea, the prevention of collisions, the prevention, reduction and control of marine pollution, and the maintenance of communications by radio. In taking the measures called for in paragraphs 3 and 4 each State is required to conform to generally accepted international regulations, procedures and practices and to take any steps which may be necessary to secure their observance. A State which has clear grounds to believe that proper jurisdiction and control with respect to a ship have not been exercised may report the facts to the flag State. Upon receiving such a report, the flag State shall investigate the matter and, if appropriate, take any action necessary to remedy the situation. Each State shall cause an inquiry to be held by or before a suitably qualified person or persons into every marine casualty or incident of navigation on the high seas involving a ship flying its flag and causing loss of life or serious injury to nationals of another State or serious damage to ships or installations of another State or to the marine environment. The flag State and the other State shall cooperate in the conduct of any inquiry held by that other State into any such marine casualty or incident of navigation.
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5. 6. 7.
UNCLOS, 95. Immunity of warships on the high seas. Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. UNCLOS, 96. Immunity of ships used only on government non-commercial service. Ships owned or operated by a State and used only on government non-commercial service shall, on the high seas, have complete immunity from the jurisdiction of any State other than the flag State. UNCLOS, 97. Penal jurisdiction in matters of collision or any other incident of navigation 1. In the event of a collision or any other incident of navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of the ship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. 2. In disciplinary matters, the State which has issued a master's certificate or a certificate of competence or licence shall alone be competent, after due legal process, to pronounce the withdrawal of such certificates, even if the holder is not a national of the State which issued them. 3. No arrest or detention of the ship, even as a measure of investigation, shall be ordered by any authorities other than those of the flag State. UNCLOS, 105. Seizure of a pirate ship or aircraft. On the high seas, or in any other place outside the jurisdiction of any State, every State may seize a pirate ship or aircraft, or a ship or aircraft taken by piracy and under the control of pirates, and arrest the persons and seize the property on board. The courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith. UNCLOS, 106. Liability for seizure without adequate grounds. Where the seizure of a ship or aircraft on suspicion of piracy has been effected without adequate grounds, the State making the seizure shall be liable to the State the nationality of which is possessed by the ship or aircraft for any loss or damage caused by the seizure. UNCLOS, 107. Ships and aircraft which are entitled to seize on account of piracy. A seizure on account of piracy may be carried out only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect.
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http://www.scribd.com/doc/51355364/Brownell-vs
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http://www.internationaljustice.ws/landmarkcases.html http://dcomfortroom.blogspot.com/2009/12/us-v-reyes-219-scra-192-1993.html
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http://nadzameril.blogspot.com/2008/08/case-digest_01.html
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http://www.batasnatin.com/law-library/political-and-public-international-law/constitutional-law/739-extradition.html
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http://www.wcl.american.edu/nimj/international_hum_law.cfm ibid
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http://luckyluchie.blogspot.com/2009/07/abaya-vs-ebdane.html
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B.
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o o
In Nicaragua v USA, ICJ held that the prohibition on the use of force is covered by treaty law (that is the UN Charter), by customary international law and the prohibition was a Jus Cogens norm. In the 1970 Declaration on Principles of International Law concerning Friendly Relations there is: (1) a general prohibition on the threat or use of force, (2) duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory when these acts involve the threat or use of force against another State.
(3) The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is found in Articles 3951 of the UN Charter. 3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way that it amounts to a threat to or breach of peace or an act of aggression. Article 39 says: The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms embargoes): The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. 3.2. Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace and security. Because the Security Council does not have a military force of its own, the Security Council authorizes member States to use force. The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. 3.3. Article 51 provides for a member State to use force in self defense when there is an armed attack against that State Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security As discussed, the only exceptions to the prohibition on the use of force in the UN Charter are found in Articles 42 and 51 of the UN Charter (provisions in Article 53(1) and 107 are not relevant and we will not discuss them). In addition to this, States have invoked customary international law of self defense and humanitarian intervention (for example in the 11 day NATO bombing of Kosovo) and implicit authorization under SC Resolutions (for example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to use force against another State. We will not discuss these aspects in class. UN Charter, 2(3). All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. UN Charter, 2(4). All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. UN Charter, 24(1). In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. UN Charter, 25. The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter. UN Charter, 23(1). The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution. UN Charter, 27(3). Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting. Nicaragua v. US. The armed attack, necessity, and proportionality requirements. The general rule prohibiting force allows for certain exceptions. First, the inherent right which any state possesses in the event of an armed attack, covers both collective and individual self defense. The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defense. In the case of individual self defense, the exercise of this right is subject to the state concerned having been a victim of an armed attack. Reliance on collective self defense of course does not remove the need for this. There is no rule in customary international law permitting another states to exercise the right of collective self defense on the basis of its own assessment of the situation. Request for exercise of collective self defense also needed. Thus, in customary international law, there is no rule permitting the exercise of collective self defense in the absence of a request by the State which regards itself as the victim of an armed attack. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. Principle of non-intervention. The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference. A prohibited interference must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. The element of coercion, which defines, and indeed forms the very essence of prohibited
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UN Charter, 94. 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.
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UN Charter, 96. 1. 2. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.
ICJ Statute, 1. The International Court of Justice established by the Charter of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of the present Statute. ICJ Statute, 34(1). Only states may be parties in cases before the Court. ICJ Statute, 35(1). The Court shall be open to the states parties to the present Statute. 5. Applicable Law ICJ Statute, 38, supra. ICJ Statute, 59. The decision of the Court has no binding force except between the parties and in respect of that particular case. Roque, The Security Council Under Ch. VII of the UN Charter: Problems under the rule of law 6. Jurisdiction ICJ Statute, 36(1-3). 1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. 2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law; c. the existence of any fact which, if established, would constitute a breach of an international obligation; d. the nature or extent of the reparation to be made for the breach of an international obligation. 3. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time. Nicaragua v. US, supra. Lockerbie Case. A dispute is defined as a disagreement on a point of law or fact, a conflict of legal views or of interest between two persons. In this case, the parties differed on the question of whether the destruction of the aircraft was governed by the Montreal Convention. Moreover, the UN SC Resolutions were adopted after Libya filed its application. Since admissibility had to be determined as at the date on which the application was filed, subsequent cognizance of the SC and the issuance of said resolutions could not remove any jurisdiction which the Court possessed at the date of filing of the application. ELSI Case. The Court held that it had jurisdiction, its jurisdiction being based upon the Statute of the Court and the FCN Treaty. The Court stated the doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. However, since Italy failed to establish that a remedy existed under municipal law which was available to the US corporations, the claim is admissible. (Notes: The doctrine of exhaustion of local remedies is available when a state brings a case in the exercise of its diplomatic protection of its nationals/ espouses a claim of its national. It is not required when the state brings a case as the injured party (i.e. the injury is caused to the state itself such as in the US Diplomatic and Consular Staff case). South West Africa Cases, supra Case Concerning East Timor. ICJ had no jurisdiction. The Court refrained from exercising jurisdiction, as it could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesias entry into East Timor was lawful. The very subject matter of the decision would necessarily be a determination of whether Indonesia acquired power to conclude treaties on behalf of East Timor, which determination could not be made without the consent of Indonesia. ( Notes: doctrine applies both to advisory opinion and contentious cases; case is authority for the definition of erga omnes obligation) 7. Advisory opinions Legality of the Uses by a State of Nuclear Weapons in Armed Conflict. The ICJ refused to give an advisory opinion. The question in this case relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the WHOs competence to deal with them is not dependent on the legality of the acts that caused them. None of the WHOs functions has a sufficient connection with the question before it for that question to be capable of being considered as arising within the scope of [the] activities of the WHO. || International organizations are governed by the principle of speciality they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. To ascribe to the WHO the competence to address the legality of the use of nuclear weapons even in view of their health and environment effects would be tantamount to disregarding the principle of speciality. Monetary Gold Case. The Court cannot decide such a dispute (WON Albania committed a wrong against Italy and must compensate) without the consent of Albania. Here, Albanias legal interest would not only be affected by a decision, but would form the very subj ectmatter of the decision.
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